Groups Urge Injunction Be Vacated in Salinger Case

By Andrew Albanese
|

Aug 07, 2009

The Second Circuit Court of Appeals will hear oral arguments on September 3 to help decide whether an injunction barring publication of Swedish author Fredrik Colting’s 60 Years Later: Coming Through the Rye constitutes an “impermissible prior restrain and an unwarranted extension” of copyright protection. Lawyers for author J.D. Salinger claim 60 Years is an “unauthorized sequel” to The Catcher in the Rye. A number of high profile organizations, including major media companies like the New York Times, the Associated Press, Gannett, and Tribune, as well as librarians, free speech advocates, and legal scholars, have filed amicus briefs supporting Colting, urging the Appeals Court overturn Judge Deborah Batts’ injunction barring U.S. publication, asserting that Batts erred by not allowing the case to proceed to a full trial.

“An injunction that effects a content-based, government-imposed speech restriction is especially inappropriate where it is entered without the benefit of a full trial,” reads the brief filed on behalf the media companies. "There is no reason why, if a copyright infringement is ultimately found, that monetary damages, rather than a book banning, would not be an adequate remedy.” The brief acknowledges Salinger’s desire may not be financial, but rather to stop any creative re-use of his works, but argues that copyright law does not favor such strict controls. “In the interest of free speech we don’t ban ruinous, libelous communication, we assess monetary damages,” the brief notes. “It belies logic to conclude that authorial dignity deserves greater protection.”

After a brief hearing, Batts ruled on July 1 that Salinger was “likely to succeed on the merits of [his] copyright case,” and issued a preliminary injunction barring publication. “The alleged parodic content” in Colting’s work, she ruled, was not “reasonably perceivable.” Colting’s attorneys have appealed on six separate grounds—including that harm must be proven. “Without a shred of evidence of harm to the Plaintiff, the District Court has taken the extraordinary step of enjoining the publication of the book,” Colting’s appeal notes. The appeal seeks “urgent relief,” noting that the injunction in fact causes harm to the defendants.

A brief filed by the major library associations asserted a public interest in overturning the injunction, also related to the First Amendment. “Prior restraints are strongly disfavored precisely because they have the potential to cause grave damage to free speech rights,” the library brief asserts. Indeed, Colting’s book may be an infringement, the brief concedes, but “the question of whether to ban publication pending that determination demands a more careful balancing of the important interests at stake.” Public watchdog group Public Citizen agreed in its brief, and also took exception to Batts’ copyright ruling, specifically, Batts’ ruling that the character of Holden Caufield was protected. “Salinger did not—and could not—register a copyright in Holden Caulfield,” the Public Citizen brief argues. “He may not sue Colting for infringement of the character.”

According to the briefs, Batts’ ruling that there was no perceptible parody in the work also seems built on a shaky foundation. Each brief noted, whether or not there may be infringement, the book clearly involves artistic expression. “If, as the complaint alleges, Salinger’s is a ‘crucial American novel,’ ” the Public Citizen brief argues, “then it is crucial the law not stand as a barrier to artistic dialogue with the shared memory of the novel.”

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